* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### APR 19 2004 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

CARL G. HACKER,

Plaintiff-Appellant,

v. WACKENHUT CORRECTIONAL FACILITY, Wackenhut Correctional Corporation; SANDRA ATWOOD, Medical Administrator Inmate Health Services; MARK FOGLE, Prison Doctor Inmate Health Services; DR. GREGSTON, Prison Doctor Inmate Health Services; JOHN DOE,

Defendants-Appellees. No. 03-6197 (D.C. No. CV-02-577-C) (W.D. Okla.)

ORDER AND JUDGMENT *

Before SEYMOUR , Circuit Judge, BRORBY , Senior Circuit Judge, and HENRY , Circuit Judge.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of1 As noted by the magistrate judge, plaintiff named W ackenhut Correctional

Corporation as a defendant but did not serve it or assert any claims against it in his complaint. We find no error in the district co urt’s dismissal of the complaint against this defendant. -2- this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument. Plaintiff Carl Hacker, an Oklahoma state inmate pro ceeding pro se, appeals the district court’s order adopting the magistrate judge’s report and recommendation and granting summary judgment in fav or of defendants. Plaintiff filed a 42 U.S.C. § 1983 civil rights complaint alleging defendants 1 were deliberately indifferent to his serious medical nee ds in violation of the Eighth Amendment. We construe plaintiff’s pleadings liberally, Haines v. Kerner , 404 U.S. 519, 520 (1972), and we affirm. The magistrate judge’s report and recommendation th oroughly and accurately sets forth the facts, which we only brie fly repeat here. Plaintiff alleges he began experiencing lower back pain on December 2 0, 2000, after carrying a food tray. He was evaluated by a prison nurse on January 6, 2001 and by prison doctors on five occasions in January, February, andMarch, 2001. Prison doctors recommended pain medication, which plaintiff refuse d. Plaintiff was taken to an outside hospital for an orthopedic evaluation in May 2001. The prison failed to get him to three hospital appointments on time, cau sing missed evaluations, but-3-

took him to a rescheduled appointment in September 2001. An MRI was performed in October 2001 and plaintiff was given n umerous epidural steroid injections and prescription medications for the next several months. The consulting physician’s report recommended treatmentof physical therapy and prescription medications. In order for a plaintiff to succeed on a § 1983 cla im for violation of the Eighth Amendment, he must show that the deprivationis “sufficiently serious,” and that the prison officials acted with “deliberat e indifference” to the inmate’s health and safety. Penrod v. Zavaras , 94 F.3d 1399, 1405-06 (10th Cir. 1996) (quotation omitted). Mere discomfort or temporary adverse conditions which pose no risk to health and safety do not implicate the Eighth Amendment. See Hudson v. McMillian , 503 U.S. 1, 9 (1992). We review the grant of sum mary judgment de novo, viewing the facts of the case in the light most favorable to the plaintiff and giving him the benefit of every favorable inference. Sealock v. Colorado , 218 F.3d 1205, 1209 (10th Cir. 2000). “Summary j udgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, i f any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Id

.-4-

Plaintiff contends defendants were deliberately ind ifferent to his medical needs due to the delays in his treatment after his injury and the delays in the hospital referral. He further contends defendants were deliberately indifferent to his medical needs because they have denied him prompt access to elective back
surgery. We have reviewed the parties’ pleadings and briefs, the record on appeal, the magistrate judge’s comprehensive report and rec ommendation, and the district court’s order, and considered them in light of the applicable law. For the reasons stated by the magistrate judge, we agree that plain tiff did not present any evidence demonstrating that any delay in medical ca re resulted from deliberate indifference to his medical needs, or that any delays caused him further injury or resulted in substantial harm. See Sealock , 218 F.3d at 1210-11 (holding that “[d]elay in medical care only constitutes an Eighth Amendment violation where the plaintiff can show that the delay resulted in s ubstantial harm”). We further agree with the district court that none of the medi cal records, treatment notes, or other evidence in the record indicate that any phys ician has recommended back surgery for plaintiff. Plaintiff’s belief that he needed back surgery is insufficient to establish a constitutional violation. See Estelle v. Gamble , 429 U.S. 97, 107 (1976) (“matter[s] for medical judgment” do not giv e rise to an Eighth Amendment violation). Plaintiff has not met his ev identiary burden to support-5-

his claim that defendants were deliberately indiffe rent to his medical needs or to his prescribed medical treatment. Ledoux v. Davies , 961 F.2d 1536, 1537 (10th Cir. 1992). Appellant’s supplemental brief, construed as a moti on to file a supplemental brief, is granted. We AFFIRM the district court’s summary judgment decision for substantially the same reason s articulated in the magistrate judge’s May 27, 2003 Recommendation and the distric t court’s July 15, 2003 Order. The mandate shall issue forthwith.

Entered for the Court

Wade Brorby Senior Circuit Judge